Opinion
No. COA12–1348.
2013-05-21
STATE of North Carolina v. Mabery LOCKLEAR, Defendant.
Roy Cooper, Attorney General, by Teresa M. Postell, Assistant Attorney General, for the State. The Law Office of Bruce T. Cunningham, Jr., by Amanda S. Zimmer and Bruce T. Cunningham, Jr., for defendant-appellant.
Appeal by defendant from judgment entered 23 May 2012 by Judge C. Winston Gilchrist in Robeson County Superior Court. Heard in the Court of Appeals 22 April 2013. Roy Cooper, Attorney General, by Teresa M. Postell, Assistant Attorney General, for the State. The Law Office of Bruce T. Cunningham, Jr., by Amanda S. Zimmer and Bruce T. Cunningham, Jr., for defendant-appellant.
MARTIN, Chief Judge.
Defendant Mabery Locklear appeals from a judgment entered upon a jury verdict finding him guilty of first-degree arson. We find no error in his trial.
The State's evidence at trial tended to show the following: on 19 May 2006, defendant and his cousin Horace Locklear had a few drinks together at defendant's mother's home, where he resides. After a few hours, defendant began to get “loud” and “rowdy,” so Horace left defendant's home to go visit friend and second cousin, Don Locklear, who lives across the street from defendant. After a few hours, defendant appeared at Don's house, where he banged on the door and asked for Horace to come outside. When he did, defendant knocked Horace down and accused him of stealing his cell phone. Defendant then left Don's house. Horace alerted law enforcement about the altercation and officers responded and took a report.
When the officers left, Horace went home to his trailer, which is located “less than 500 feet” from defendant's home. Horace had lived in the trailer for approximately three to four months prior to 19 May 2006. Although the trailer was fully furnished, there was no electricity, water, or telephone. Horace lay down and was “half asleep” when he heard “a little popping sound” which woke him up. Horace saw defendant standing in the doorway to his bedroom, about eight feet away. Defendant was holding a “big red gas can, pouring gas and backing up,” “going back down the hallway.” Horace described the flames around his bedroom door as being “about four [feet] high.” Because Horace could not go out through his doorway, he climbed out the window in his bedroom. As he got outside, Horace saw defendant coming out of the back door of the trailer, walking towards Horace. Horace heard defendant yell “I told you I'd get you, man.”
Horace ran to Don Locklear's house, where he waited until the fire department arrived. Officer Todd Harris with the Robeson County Sheriff's Office arrived and observed the trailer completely engulfed in flames. Officer Harris spoke with Horace, who identified defendant and told him about their earlier altercation and that he observed defendant throwing gas on his house and setting it on fire. Officer Harris went to defendant's home to speak with him and found him sitting on his porch. When Officer Harris asked defendant what he was doing, defendant said he was watching the fire and volunteered that “he didn't have anything to do with it.” Officer Harris observed that defendant was “nervous and sweaty” and that his “hands and feet were dirty” and noticed that he had a flashlight in his hands. Defendant explained that his feet were dirty because he had “been out walking.” Officer Harris did not notice whether defendant had any burns or injuries that night.
On 14 June 2010, a grand jury in Robeson County indicted defendant for first-degree arson in connection with the 2006 burning of Horace Locklear's trailer. At trial, three witnesses testified that defendant told them he set fire to Horace's trailer. At the close of the trial, the court read jury instructions for admissions by the defendant and confession:
If you find from the evidence that the defendant has admitted a fact relating to the crime charged in this case, then you should consider all the circumstances under which it was made in determining whether it was a truthful admission by the defendant and the weight you will give to it.
By the same token, if you find that defendant has confessed that the defendant committed the crime charged in this case, then you should consider all of the circumstances under which such a confession was made in determining whether it was a truthful confession and the weight you choose to give it.
Defendant's counsel objected to both instructions, but later stated that he believed the instruction on admission was more appropriate given the circumstances of the case.
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On appeal, defendant contends the trial court erred by (I) instructing the jury on both admissions and confession, because the evidence only supported an instruction on admissions, and (II) denying defendant's motion to dismiss based on insufficient evidence.
“This Court reviews jury instructions contextually and in its entirety. The charge will be held to be sufficient if it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed ....“ State v. Blizzard, 169 N.C.App. 285, 296–97, 610 S.E.2d 245, 253 (2005) (internal quotation marks omitted). “Under such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury.” Id. at 297, 610 S.E.2d at 253 (internal quotation marks omitted).
Jury instructions regarding confessions “should be used with great caution. The instruction should not be given in cases in which the defendant has made a statement which is only of a generally inculpatory nature.” State v. Young, 324 N.C. 489, 498, 380 S.E.2d 94, 99 (1989). However, “when evidence is introduced which would support a finding that defendant in fact has made a statement admitting his guilt of the crime charged,” the instruction is properly given. Id. The North Carolina Supreme Court has defined “confession” as a
[v]oluntary statement made by one who is [a] defendant in [a] criminal trial at [a] time when he is not testifying in trial and by which he acknowledges certain conduct of his own constituting [a] crime for which he is on trial; a statement which, if true, discloses his guilt of that crime.
State v. Cannon, 341 N.C. 79, 89, 459 S.E.2d 238, 244–45 (1995) (quoting Black's Law Dictionary 296 (6th ed.1990)).
Here, three witnesses testified at trial that defendant admitted to burning Horace's trailer. Amelia Huggins, a friend and ex-girlfriend of defendant, testified that defendant told her that Horace's house “needed burning.” She wrote and signed a statement that asserted defendant “said he burned it because it was trash, he needed to clean the neighborhood.” Amelia also testified that defendant stayed at her home for a few days, and while he was there, she noticed that he had a burn on his foot that was “swollen, red, [and] blistered,” for which he eventually sought medical treatment. Heath Oxendine, one of Horace's good friends, testified that defendant told him twice, once in 2007 and once in 2010 or 2011, that he burned Horace's trailer. Similarly, Robert Kent Locklear (“Kent”), Horace's nephew, testified that defendant admitted he burned Horace's trailer while visiting with a mutual friend of both Kent and defendant, Michael Bullard. Kent testified that defendant told him, “Kent, I burned Horace's trailer down and there's nothing you or your father can do about it, I burned it down.”
Although defendant's statement to Amelia Huggins, based on her testimony, could be considered as generally inculpatory in nature and not a “confession,” the statement made to Kent Locklear “acknowledges certain conduct of his” which “constitut [es][a] crime for which he is on trial.” Moreover, even if defendant's statements could not be deemed “confessions,” defendant has not demonstrated that the trial court's giving the instruction about confessions was likely to mislead the jury. The charge itself said “ if you find that defendant has confessed ... you should consider all of the confession and the weight you choose to give it,” thereby inviting the jury to consider the nature of his statements and weigh the relative credibility of defendant and the other witnesses in making their ruling. Therefore, this issue is overruled.
II.
Defendant next contends the trial court erred by denying his motion to dismiss because there was insufficient evidence to support a conviction for first-degree arson as the testimony at trial was “incredible” and “unsupported by physical evidence.” Defendant specifically argues that the trial court should have taken Horace's credibility into account when ruling on the motion to dismiss. We disagree.
“Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.” State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). In ruling on a motion to dismiss, all evidence must be viewed in the light most favorable to the State. See State v. Witherspoon, 293 N.C. 321, 326, 237 S.E.2d 822, 826 (1977). “The test of the sufficiency of the evidence on a motion to dismiss is the same whether the evidence is direct, circumstantial, or both.” State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984).
First-degree arson is defined as “(1) the willful and malicious burning (2) of the dwelling (i.e., inhabited) house of another; (3) which is occupied at the time of the burning.” State v. Scott, 150 N.C.App. 442, 453, 564 S.E.2d 285, 293,appeal dismissed and disc. review denied,356 N.C. 443, 573 S.E.2d 508 (2002).
As discussed in part I., three witnesses testified that defendant told them that he burned Horace's trailer. Additionally, Horace testified that he saw defendant actually pouring the gasoline and that defendant yelled at him, “I told you I'd get you, man.” Furthermore, Officer Harris noted defendant's “nervous” behavior when he spoke with him while investigating the fire, and noticed that his feet and hands were dirty. Although Officer Harris did not notice any burns on defendant at that time, Amelia Huggins testified that defendant stayed with her for several days around the time of the fire and that he had burns on his foot for which he sought medical attention. Defendant admitted he sought medical treatment for a burn on his foot within a week of the fire. Moreover, defendant and Horace had an altercation earlier that night in which police responded and took a statement. We believe that this evidence, viewed in the light most favorable to the State, is sufficient for a reasonable mind to conclude that defendant intentionally set Horace's trailer on fire.
Moreover, we are not persuaded by defendant's argument that the trial court should have considered Horace's credibility when ruling on his motion to dismiss. Defendant contends that although ordinarily the jury, not the court, is to determine the credibility of witnesses and the weight to give their testimony, the trial court should do so in a case where the “only evidence identifying the defendant as the perpetrator of the offense is inherently incredible because of undisputed facts, clearly established by the State's evidence, as to the physical conditions under which the alleged observation occurred.” State v. Miller, 270 N.C. 726, 731, 154 S.E.2d 902, 905 (1967).
Here, Horace had a sufficient view of defendant so as to not render his identification of defendant “inherently incredible.” Defendant was allegedly only eight feet away at the time Horace observed him pouring gasoline in his trailer. Cf. id. at 732, 154 S.E.2d at 905 (holding evidence was insufficient to identify defendant where prosecution witness was never closer than 286 feet from defendant). Horace also saw defendant as he ran away from the fire, when defendant shouted after him. Furthermore, Horace had seen defendant earlier that night, and therefore, he knew what defendant looked like. Cf. id. (holding evidence was insufficient to identify defendant because, in addition to being far away at the time of observation, defendant was a total stranger to the witness). Therefore, we find no error in the trial court's denial of defendant's motion to dismiss for insufficient evidence.
No error. Judges BRYANT and DAVIS concur.
Report per Rule 30(e).